can be express (interest arises via the instrument) or implied (interest arises by operation of law because something less than a complete fee simple has been transferred which means something must have been retained

might automatically go back to O, depends on whether the contingency happens

Fee simple subject to a condition subsequent

provided/however/on condition that

ex. school, its successors and assigns, but if (provided...) the premises are not used for school purposes, O has a right to re-enter and retake premises.

purposes are to preserve scenery, history, open space, provide a tax haven.

perpetual and transferrable

can be granted to private parties, local governments, and charities.

can either be appurtenant or in gross

If a promise does qualify as a positive or negative easement, a party can try to enforce it as a

covenant

If court deems promise to be a covenant

it will run with the land and bind parties down the chain of title

If deemed regular promise

will be treated as a contract, and only bind the parties to the contract

Law of covenants came about because of

limitations on easements

market pushed the courts to allow promises that were not positive easements and negative promises that were not on the list of legally recognized negative easements to run with the land

Two categories of covenants

real covenants and equitable servitudes

Covenants

always have a benefit side and a burden side

requirements are different for the benefit and burden to run

Remedies for violation of a real covenant

damages, injunctive relief and forfeiture

Special rules applicable to real covenants

can be positive or negative

writing strictly required to create a real covenant

can never be created by implication, estoppel, prescription, or public trust.

only runs if the person purchasing the burdened land receives actual notice.

historically you needed to show vertical privity for either the burden or benefit to run (no adverse possession), but the trend is away from this requirement since actual notice is required.

remedy is at law: damages

Special rules applicable to equitable servitudes

Always negative.

No writing required except if it’s a reciprocal negative easement.

Can run with the land

Remedy is at equity: injunctive relief. However, you can obtain an injunction then sell the injunction.

Courts cannot enforce racially restrictive covenants without violating the Equal Protection clause of the 14th Amendment, so even if they are in the deed, it’s as if they are not.

Covenants can be terminated in any one of 8 ways: merger, release, acquiescence, abandonment, unclean hands, latches, estoppel, and changed conditions.

Changed conditions only terminate a covenant if the change is truly extreme (such as a neighborhood going from residential to non-residential).

Modernly, a covenant touches and concerns the land if in purpose and effect it substantially alters the rights of the benefitted property owner. The focus is on the intent and effect of the promise.

Homeowners associations are treated by courts as alter-egos of the property owners in their membership. Accordingly, they can enforce covenants just as if they were property owners.

Equitable servitudes run with the land if

1. the original parties intended the promise to run

2. the person purchasing the burdened land received actual or constructive (record) notice of the promise; and

3. the promise touches and concerns the land.

Historically, you also needed to show vertical privity for either the burden or benefit to run (no adverse possessors), but the trend is away from this requirement since actual or constructive notice is required.

Remedy is at equity: injunctive relief. However, you can obtain an injunction then sell the injunction.

Reciprocal negative easement

type of equitable servitude in which a developer starts with a common plan with multiple lots; sells some lots with one or more negative promises designed to benefit all the lots in the common plan.

the deed was recorded (which provides constructive notice).

All lots in the plan are treated as containing the same promise.

Two basic kinds of estates

freehold estates (fee simple, life estate, etc.)

leasehold estates (landlord-tenant law applies)

leasehold estate

is a hybrid legal creature, in that it is both an interest in land and a contract.

Leases

are typically longer and more complicated than deeds that transfer freehold estates

because leaseholds contemplate an ongoing relationship.

A court can find that a document called a “lease” is not in fact a “lease” but

but a license or life estates.

This is significant because landlord-tenant law only applies to leaseholds.

Creation of a landlord-tenant relationship automatically triggers

certain rights and duties, and particular grounds for liability and remedies.

four sub-categories of leasehold estates

(1) term of years

(2) periodic tenancy

(3) tenancy at will

(4) tenancy at sufferance.

Term of years (leasehold)

last for a fixed or knowable period;

no limit on time (at common law);

cannot be created by implication;

no notice of termination needed (because the writing specifies precisely when it will terminate);

death of landlord or tenant does not terminate tenancy;

can be terminable upon the happening of some event or condition.

Periodic tenancy

lasts from period to period (month to month, year to year);

can be created expressly or by implication; year to year terminated by half year’s

notice;

less than a year, notice of termination = period, but not to exceed 6 months;

notice must terminate the tenancy at the end of a period;

death of landlord or tenant does not terminate tenancy.

Tenancy at will

no fixed period;

typically endures so long as both parties desire;

but note that some jurisdictions enforce one-sided termination clauses as long as

to provide the landlord with notice and a reasonable opportunity to fix the problem before filing suit or abandoning the lease.

Nuisance

Nuisances can be private or public.

Overarching principle: Every person should use his or her property so as not to injure the other person’s property or interfere with their use of their own property.

Public nuisance

is one that unreasonably interferes with a right common to the general public.

A public nuisance might be an activity that is injurious to public health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.

Local governments are often vested with the power to abate public nuisances.

Conduct is unreasonable for public nuisance
purposes if it

(1) violates the law;

(2) interferes significantly with public rights; or

(3) produces long-lasting effects of which

the actor should be aware.

Private Nuisance Elements

(1) substantial;

(2) non-trespassory;

(3) invasion of the use and/or enjoyment of land;

(4) caused by;

(5) activities that are

(a) unintentional and negligent, reckless, or ultrahazardous; or

(b) intentional and unreasonable.

-“intentional” means acting for the purpose of causing the invasion OR acting in the knowledge that the invasion is resulting or substantially certain to result from the conduct in question.

For purposes of element no. 5 (private nuisance), the definition of
“unreasonable” depends on the jurisdiction:

(1) The Jost test measures the bad effects of the defendant’s activity on the plaintiff without balancing the effect against the benefits of the activity to the defendant or surrounding community, and finds a nuisance when the bad effect crosses a particular threshold.

(2) The Restatement test balances the benefits of the activity against the costs to the plaintiff, and finds a nuisance only when the gravity of the harm outweighs the utility of the defendant’s activities.

Most courts apply the Jost test.

Private nuisances

Injury can be corporeal (pesticides, e.g.) or incorporeal (smell, e.g.).

You do not need a physical invasion to establish a nuisance (unlike trespass).

Harm has to be substantial to establish a claim for nuisance (unlike in tort law).

Test assumes a person of ordinary sensitivity

(supersensitive plaintiffs can’t state a claim unless a person of ordinary sensitivity would have the same experience).

Policy question at the heart of nuisance cases
is how do the courts decide such conflicts in a way that is fair to everyone involved?

Not clear who pays to abate the nuisance, usually depends on equitable considerations (like whether plaintiff was there first or came to the nuisance or) and the overall balance of hardships (who can best afford to abate the nuisance)?

If the plaintiff came to the nuisance, he or she is more likely to be ordered to pay for its abatement.

If abatement costs a lot more than permanent damages, courts are more likely to award permanent damages.

Zoning developed

in response to the industrial revolution, during which people poured into cities, creating new problems such as congestion, overcrowding, noise pollution, air pollution, foul odors, etc.

Zoning allows for planning.

All 50 states have enacted laws granting zoning power to local public entities.

But starting in the 1950’s zoning laws began to regulate with much more specificity what kinds of activities could take place in a particular neighborhood.

This brought zoning laws into tension with individual rights.

Challenges to zoning ordinances themselves are
usually

(1) powers challenges, which typically argue that the locality lacked the statutory power to create the zoning categories it did;

(2) unlawful delegation challenges, which argue that the wrong body made the final decision; or

(3) constitutional or statutory challenges, which argue that although the locality had the authority to act and the right body acted, its action violated the applicant’s state or federal constitutional or statutory rights.

Speech rights (zoning)

implicated because some things (like signs) are

both speech and a physical object.

Can't zone out

too much speech because that is too blunt an instrument to achieve a particular goal.

too little speech or it looks like you’re targeting a particular point of view.

yard signs altogether.

You cannot have blanket bans on personal, political, or religious speech.

Can zone

ugly (billboards, e.g.).

Right to free exercise of religion

implicated because some things (like houses of worship) are physical objects but also necessary to religious expression.

Federal Religious Land Use and Institutionalized
Persons Act of 2000 (RLIUPA)

sets stricter limits on zoning laws that burden the free exercise of religion.

prohibits land use regulations that impose substantial burdens of religious exercise unless the government demonstrates that the regulation is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.

also prohibits regulations that treat religious institutions unequally relative to nonreligious institutions, otherwise discriminate against them, or totally exclude them from a jurisdiction.

does not expressly define “substantial burden.” Most courts have held that a substantial burden on religious exercise exists when there is a substantial connection between the coerced or impeded conduct and the religious exercise of the institution.

The courts tend to look (zoning)

favorably on requiring a certain dispersion of potentially offensive businesses and images.